With his recent appointment to the advisory council of the Center for Democracy & Technology (CDT), Peter Dengate Thrush, spoke to NZ Lawyer about the issues of privacy and security online.
Thrush is a New Zealand barrister, internet law specialist and former chairman of the Internet Corporation for Assigned Names and Numbers (ICANN).
“I think we’re still exploring what’s always been posited as a binary position – you either have security and no privacy or you have privacy and no security,” he said.
“What we’re trying to see at the moment is whether those two things are just at each end of a single line or whether there are actually orthogonal policy lines that cross that.”
If it is a binary spectrum, Thrush said those creating new policies in internet law need to be aware of the tension created as different groups choose different positions along that line.
“Obviously, a bank is going to put itself at the high security end whereas other people, individual citizens and human rights activists, are going to want much more privacy.”
In New Zealand, the focus will be on where the country wants to be on this spectrum, he added.
“We’ve got a whole series of existing privacy principles in the human rights legislation: the Human Rights Act and the Privacy Act. But are they sufficient and do they apply? And then the constant question is should we have the power of undermining any of those things simply by waving a claim of national security?”
To tackle these questions, as much expertise is required on all individual points, Thrush said. This could include government ministers, internet law specialists and tech experts.
“For instance, there needs to be a fairly comprehensive technology discussion about how things work and what can be done. Then this starts to lead into what should be done and who should do it.”
Human rights activists will also need to discuss any relevant human rights issues and create clear definitions of privacy and confidentiality so these can then be applied practically.
“It’s not something that you can do quickly or easily,” Thrush said. “You need to work out what the technology allows, what are the interests you’re trying to protect, and then how the law could better reflect that.”